Practice point: In their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting deposition testimony, hospital records, and the affirmation of their medical expert establishing that at all times they acted under the direction and supervision of the attending physicians, and that they lacked the authority to independently order tests and medication. Their physically examining plaintiff and participating in her diagnosis and discharge from care did not demonstrate the exercise of independent medical judgment. In addition, the defendants demonstrated that the diagnosis and treatment plan implemented and continued under the supervision of the attending physicians did not include orders so clearly contraindicated by normal practice that ordinary prudence required inquiry into the correctness of those orders.
Student note: The Appellate Division determined that the motion court properly rejected the redacted and unsigned affirmation of the plaintiff's medical expert where the plaintiff offered no explanation for the failure to identify the expert by name or the failure to offer an unredacted affirmation for in camera review. Therefore, that affidavit was insufficient to raise a triable issue of fact as to the defendants' alleged malpractice.
Case: France v. Packy, NY Slip Op 06939 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Denial of a motion to dismiss for inconvenient forum.
